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The Nomination of Jeffrey Sutton: A Post-Hearing Report

Introduction

The recent hearing on the nomination of attorney Jeffrey S. Sutton to the U.S. Court of Appeals for the Sixth Circuit failed to resolve, and actually reinforced, the serious concerns about his nomination. Senators should reject his confirmation to the appeals court in order to preserve the rights, freedoms, and legal protections that Americans have relied on federal courts to protect.

Prior to the hearing, People For the American Way joined literally hundreds of disability, environmental, civil rights, and other organizations in opposing Sutton’s confirmation, based largely on his extreme stance and prominent role in the “states’ rights” or “federalism” revolution that has already severely limited Congress’s ability to protect Americans from discrimination and other harm. It was clear even before his hearing that Sutton had failed to demonstrate a “record of commitment to the progress made on civil rights, women’s rights and individual liberties” and a “respect for the constitutional role Congress plays in promoting these rights and health and safety protections, and ensuring recourse when these rights are breached” – important criteria that more than 200 law professors explained in 2001 should be met by all nominees to such powerful lifetime judicial positions.

At the January 29,2003 hearing and in response to written post-hearing questions, Sutton acknowledged the important role he has played in the series of 5-4 Supreme Court decisions since the mid-1990s that have hobbled Congress’s ability to protect Americans’ rights. He claimed, however, that he was simply representing his clients’ positions in such cases, and that his arguments do not reflect his views and legal philosophy. As several Senators’ questions clearly demonstrated, however, this is untrue; outside of his role as a lawyer representing clients, Sutton has personally advocated significant restrictions on Congress’s authority to protect civil rights and other critical interests. And contrary to his suggestions at the hearing, he has often advocated restrictions that go beyond even what the current 5-4 Supreme Court majority has imposed. Sutton’s undisputed written record makes clear that he has been far more than a mouthpiece for clients advocating positions in which he does not believe, and his efforts to suggest otherwise to the Judiciary Committee and to the American public are disingenuous at best. Sutton’s confirmation to a powerful lifetime position on the Sixth Circuit threatens to accelerate the dangerous “states’ rights” movement and undermine even more drastically the ability of Congress to protect the rights of all Americans.

More than 99 percent of appeals court rulings are never reviewed by the Supreme Court and thus stand as the final word on the law for millions of Americans. During the Clinton administration, Senate Republican leaders erected an ideological blockade around the appeals courts, blocking 35 percent of Clinton nominees from 1995 through 2000, most without even a hearing or vote. President Bush is completing this strategy by trying to fill the vacancies perpetuated by his congressional allies with judges who will turn back the clock to the era when states’ rights and property rights trumped constitutional protections for individuals.

The administration and its nominees have not been up front with the American people about the far-reaching consequences of a states’ rights-dominated judiciary. Jeffrey Sutton is one of the nation’s most aggressive advocates for an extreme states’ rights approach to the Constitution, but he tried to downplay his commitment to that goal in testimony that was misleading at best and contradicted by the public record. With a lifetime position on the powerful appeals court, Sutton would provide new momentum to the effort to reverse decades of legal and social justice accomplishments. On behalf of the country and the Constitution, Senators must reject Sutton’s confirmation to the appeals court.